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Moore v. Gaither

February 22, 2001

LONNIE MOORE, APPELLANT,
V.
GLENDA GAITHER, APPELLEE.



Before Steadman, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. Iraline Green Barnes, Trial Judge)

Argued October 17, 2000

On November 26, 1997, appellee Glenda Gaither was sentenced to serve a term of imprisonment by a judge of the Superior Court. Ms. Gaither was placed at the Correctional Treatment Facility (CTF), a privately operated correctional institution which is located in southeast Washington, D.C. The CTF houses District of Columbia prisoners under the terms of a contract with the District's Department of Corrections (DOC). In January 1998, CTF staff charged Ms. Gaither with several violations of the facility's disciplinary regulations, including bribery, falsification of physical evidence, and "being out of place."

On January 20, 1998, Henry A. Escoto, Esquire, Ms. Gaither's attorney, arrived at the CTF for the purpose of representing his client at a disciplinary hearing on these charges, which was scheduled for that day. Although it had previously been the practice at the CTF to permit attorneys for prisoners to participate in disciplinary proceedings, Mr. Escoto was not granted permission to do so. CTF personnel also denied Mr. Escoto leave to attend the hearing or to consult with his client in advance of the proceedings. Following the hearing, the CTF's Board of Adjustment ordered that Ms. Gaither be placed in "adjustment segregation" (solitary confinement) for several weeks and that she lose certain privileges.

On January 22, 1998, Ms. Gaither petitioned the Superior Court for a writ of habeas corpus. Ms. Gaither alleged that her detention in solitary confinement was unlawful. She claimed that the CTF's refusal to permit her attorney to represent her in the disciplinary proceeding deprived her of rights protected by the Lorton Regulations Approval Act (LRAA), 29 D.C. Reg. 3484 (1982), and the Lorton Regulations, which are codified at 28 DCMR §§ 500 et. seq. (1987).

On February 5, 1999, more than a year after the petition was filed, *fn1 the trial judge concluded that under the Lorton Regulations, Ms. Gaither was entitled to legal representation at her disciplinary hearing. The judge ordered

that all references to the offenses which petitioner was found guilty of at the January 20, 1998, disciplinary hearing and that the time she spent in administrative segregation as a result of said hearing be expunged from her record for failure to comply with 28 DCMR §§ 500 et. seq.

The CTF's Warden, Lonnie Moore, appeals, contending that the LRAA has no application to the CTF and that Ms. Gaither had no constitutional or statutory right to counsel at the disciplinary hearing. The District has participated in the appeal as amicus curiae in support of Mr. Moore's position. Ms. Gaither, who is joined in her contentions by the Public Defender Service as amicus curiae, asserts that the exclusion of her attorney from the proceeding was in contravention of her statutory and other rights.

Although the denial of counsel to District prisoners at disciplinary hearings is at odds with the practice in this jurisdiction for a quarter of a century, Ms. Gaither's statutory and related arguments do not persuade us that she had a right to such representation while housed at the CTF. Accordingly, we reverse.

I. BACKGROUND

A. The enactment of the LRAA and the adoption of the Lorton Regulations.

The issue before us is one of considerable importance for prisoners confined at the CTF and similar institutions. To put the matter in simple human terms, adjustment segregation in solitary confinement (popularly known as the "hole") is not a pleasant experience, see, e.g., Hatch v. District of Columbia, 337 U.S. App. D.C. 266, 268, 184 F.3d 846, 848 (1999) (describing alleged solitary confinement regime at Lorton); Smith v. Moore, 749 A.2d 132, 134 n.3 (D.C. 2000) (same), and litigation over prison conditions in this jurisdiction has often been concerned with the protections available to a prisoner in a disciplinary proceeding which may result in his or her placement in solitary. From the perspective of the prisoner, the right to representation by counsel is one of the most important of these protections. *fn2 Ms. Gaither's quarrel with the CTF is but the latest chapter in a continuing controversy over the operation of prisons and the limits of any role that judges and lawyers should play in determining acceptable conditions of confinement.

For purposes of this appeal, our discussion must begin with a class action brought against the DOC more than a quarter of a century ago by inmates of the Lorton Correctional Complex. See Wright v. Jackson, No. 75-0697 (D.D.C.). *fn3 In that suit, the prisoners alleged that the DOC's disciplinary procedures, including those applicable to the placement of inmates in solitary confinement, denied the plaintiffs rights protected by the Fifth Amendment's Due Process Clause. In 1979, the parties reached a negotiated settlement, and the District agreed to adopt new regulations which were designed, inter alia, to protect the procedural rights of prisoners in disciplinary proceedings. These regulations were duly promulgated and adopted, and they are now codified in 28 DCMR §§ 500-519 (1987).

In 1982, in conformity with the settlement of the Wright case, the Council of the District of Columbia approved the Lorton Regulations by enacting the LRAA, which provides, in pertinent part, as follows:

The Council of the District of Columbia approves the regulations setting forth the administrative procedures for adjustment and housing actions and the code of offenses governing residents of the Lorton Correctional Complex as adopted by the Director of Corrections on February 18, 1981, and published in the D.C. Register on February 27, 1981 (28 DCR 865). LRAA § 2, 29 D.C. Reg. 3484.

The Mayor signed the legislation, and the LRAA was transmitted for Congressional review. 29 D.C. Reg. 3484 (1982). Congress interposed no objection, and the LRAA became law in 1982. This court has held that the Lorton Regulations confer protected liberty interests, and that these interests are judicially enforceable. See, e.g., Abdullah v. Roach, 668 A.2d 801, 805-07 (D.C. 1995).

B. The content of the Lorton Regulations.

The Lorton Regulations articulate the following ...


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